Free Statement - District Court of Arizona - Arizona

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Anders Rosenquist, Jr. #002724 Florence M. Bruemmer #019691 Rosenquist & Associates 80 E. Columbus Phoenix, Arizona 85012 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Case No. CV 04-299 PHX-DGC and CV 04 1023 PHX-DGC

6 MEADOWLARK LEMON, a married man, 7 8 vs. 9 HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation; HARLEM 10 GLOBETROTTERS INTERNATIONAL FOUNDATION, INC., an Arizona corporation; 11 MANNIE L. JACKSON and CATHERINE JACKSON, husband and wife; FUBU THE 12 COLLECTION, LLC, a New York limited liability company doing business in Arizona; GTFM, LLC, a 13 New York limited liability company doing business in Arizona; 14 Defendants. 15 16 17 18 19 20 21 22 23 24 25 26 vs. MEADOWLARK LEMON, a married man, Counterdefendant. HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation, Counter-claimant, Plaintiff,

STATEMENT OF CONTRAVERTING FACTS IN SUPPORT OF PLAINTIFF MEADOWLARK LEMON'S RESPONSE TO DEFENDANTS HARLEM GLOBETROTTERS INTERNATIONAL, INC., HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, AND MANNIE L. & CATHERINE JACKSON'S MOTION FOR SUMMARY JUDGMENT

Plaintiff Meadowlark Lemon (hereinafter "Mr. Lemon" or "Plaintiff"), hereby submits his Statement of Contraverting Facts in Support of his Response to Defendants Harlem Globetrotters International, Inc., Harlem Globetrotters International Foundation, and Mannie L. & Catherine Jackson's Motion for Summary Judgment (hereinafter collectively as "Defendants") as follows:

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UNDISPUTED FACTS: 1. Plaintiff agrees with ¶ 1 of Defendant's Statement of Facts ("Defendants' SOF). 2. Plaintiff agrees with ¶ 3 of Defendants' SOF. 3. Plaintiff agrees with ¶ 6 of Defendants' SOF but affirmatively asserts that Arizona is a Community Property state. 4. Plaintiff agrees with ¶ 7 of Defendants' SOF. 5. Plaintiff agrees with ¶ 8 of Defendants' SOF. 6. Plaintiff agrees with ¶ 18 of Defendants' SOF. 7. Plaintiff agrees with ¶ 24 of Defendants' SOF. 8. Plaintiff agrees with ¶ 26 of Defendants' SOF. 9. Plaintiff agrees with ¶ 27 of Defendants' SOF and to clarify, Plaintiff affirmatively asserts that that Plaintiff only appeared in the endorsement advertisements while he was a Globetrotter player. 10. Plaintiff agrees with ¶ 28 of Defendants' SOF and to clarify, Plaintiff affirmatively asserts that that Plaintiff only appeared in the television programs and movies while he was a Globetrotter player. 11. Plaintiff agrees with ¶ 29 of Defendants' SOF. 12. Plaintiff agrees with ¶ 31 of Defendants' SOF. 13. Plaintiff agrees with ¶ 33 of Defendants' SOF. 14. Plaintiff agrees with ¶ 34 of Defendants' SOF. 15. Plaintiff agrees with ¶ 38 of Defendants' SOF. 16. Plaintiff agrees with ¶ 39 of Defendants' SOF. 17. Plaintiff agrees with ¶ 41 of Defendants' SOF. -2Document 283

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18. Plaintiff agrees with ¶ 43 of Defendants' SOF. 19. Plaintiff agrees with ¶ 53 of Defendants' SOF. 20. Plaintiff agrees with ¶ 60 of Defendants' SOF. 21. Plaintiff agrees with ¶ 61 of Defendants' SOF. 22. Plaintiff agrees with ¶ 62 of Defendants' SOF. 23. Plaintiff agrees with ¶ 63 of Defendants' SOF. 24. Plaintiff agrees with ¶ 65 of Defendants' SOF. 25. Plaintiff agrees with ¶ 66 of Defendants' SOF. 26. Plaintiff agrees with ¶ 67 of Defendants' SOF. 27. Plaintiff agrees with ¶ 68 of Defendants' SOF. 28. Plaintiff agrees with ¶ 69 of Defendants' SOF. 29. Plaintiff agrees with ¶ 70 of Defendants' SOF but affirmatively asserts he does not have knowledge whether the Globetrotters' belief that they possessed the right to former players' names and likenesses was "strong". 30. Plaintiff agrees with ¶ 72 of Defendants' SOF. 31. Plaintiff agrees with ¶ 73 of Defendants' SOF. 32. Plaintiff agrees with ¶ 74 of Defendants' SOF. 33. Plaintiff agrees with ¶ 77 of Defendants' SOF. 34. Plaintiff agrees with ¶ 78 of Defendants' SOF. 35. Plaintiff agrees with ¶ 80 of Defendants' SOF. 36. Plaintiff agrees with ¶ 81 of Defendants' SOF. 37. Plaintiff agrees with ¶ 83 of Defendants' SOF. 38. Plaintiff agrees with ¶ 85 of Defendants' SOF. -3Document 283

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39. Plaintiff agrees with ¶ 86 of Defendants' SOF. 40. Plaintiff agrees with ¶ 89 of Defendants' SOF, however Plaintiff is without knowledge regarding whether HGI ceased making payments to the players and the Foundation "as a result" of Plaintiffs' filing suit. 41. Plaintiff agrees with ¶ 90 of Defendants' SOF. 42. Plaintiff agrees with ¶ 92 of Defendants' SOF. 43. Plaintiff agrees with ¶ 93 of Defendants' SOF. 44. Plaintiff agrees with ¶ 94 of Defendants' SOF. 45. Plaintiff agrees with ¶ 96 of Defendants' SOF but asserts that Defendants' expert also did not determine if consumers were confused by the merchandise, whether apparel was sold because Plaintiff's information was on it, Plaintiff's name, image, or player number recognition, diminution of Plaintiff's publicity value, demographics of the consumers who bought the apparel, and offered no opinion on whether Defendants willfully and intentionally infringed Plaintiff's rights. (See Defendants' Expert Report, attached as Exhibit "FF"). 46. Plaintiff agrees with ¶ 98 of Defendants' SOF. 47. Plaintiff agrees with ¶ 99 of Defendants' SOF. 48. Plaintiff agrees with ¶ 100 of Defendants' SOF. 49. Plaintiff agrees with ¶ 101 of Defendants' SOF. 50. Plaintiff agrees with ¶ 102 of Defendants' SOF. 51. Plaintiff agrees with ¶ 104 of Defendants' SOF. 52. Plaintiff agrees with ¶ 105 of Defendants' SOF. 53. Plaintiff agrees with ¶ 106 of Defendants' SOF. 54. Plaintiff agrees with ¶ 107 of Defendants' SOF. -4Document 283

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55. Plaintiff agrees with ¶ 108 of Defendants' SOF. 56. Plaintiff agrees with ¶ 114 of Defendants' SOF. 57. Plaintiff agrees with ¶ 116 of Defendants' SOF. 58. Plaintiff agrees with ¶ 117 of Defendants' SOF. 59. Plaintiff agrees with ¶ 118 of Defendants' SOF. 60. Plaintiff agrees with ¶ 119 of Defendants' SOF. 61. Plaintiff agrees with ¶ 120 of Defendants' SOF. 62. Plaintiff agrees with ¶ 122 of Defendants' SOF. 63. Plaintiff agrees with ¶ 123 of Defendants' SOF. 64. Plaintiff agrees with ¶ 125 of Defendants' SOF. 65. Plaintiff agrees with ¶ 126 of Defendants' SOF. 66. Plaintiff agrees with ¶ 127 of Defendants' SOF. 67. Plaintiff agrees with ¶ 128 of Defendants' SOF. 68. Plaintiff agrees with ¶ 145 of Defendants' SOF. 69. Plaintiff agrees with ¶ 146 of Defendants' SOF. 70. Plaintiff agrees with ¶ 155 of Defendants' SOF. 71. Plaintiff agrees with ¶ 157 of Defendants' SOF. 72. Regarding ¶ 56 of Defendants' SOF, Plaintiff agrees that he has not filed a publicity-related lawsuit against Defendants since Mannie Jackson has owned the Globetrotters. However, prior to that time Plaintiff was a young player and was represented by different attorneys during his time with the Globetrotters and he does not know whether a lawsuit was possibly filed against Defendants on his behalf at that time. To the best of Plaintiff's knowledge, he does not believe that he has filed a lawsuit against Defendants prior to this. -5Document 283

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DISPUTED FACTS: 73. Since the sale of the Globetrotters and the transfer of assets of HGI, Plaintiff is without sufficient information regarding ¶ 2 of Defendants' SOF and therefore does not agree with or dispute the allegations therein. 74. Plaintiff disputes ¶ 4 of Defendants' SOF and affirmatively asserts that Plaintiff's old contracts speak for themselves. (See Plaintiff's Player Contract, attached as Exhibit "B"; Plaintiff's Independent Contractor Agreement, attached as Exhibit "C"). It does not matter what Mannie Jackson "believed" because he acted in bad faith by not looking at Plaintiff's old contracts and instead relying on some "standard player contract." 75. Plaintiff agrees with the first sentence of ¶ 5 of Defendants' SOF, which states, "the Harlem Globetrotters International Foundation was created in 1998 and is an Arizona-based non-profit corporation. However, Plaintiff disagrees with the remainder of ¶ 5 and affirmatively asserts that Plaintiffs no of no former "needy" players that have been helped by the Foundation. (See Thorton Deposition Transcript, attached as Exhibit "D" at p. 50; Sanders Deposition Transcript, attached as Exhibit "E" at p. 128; Haynes Deposition Transcript, attached as Exhibit "F" p. at 97-98, 107; Foundation Report, attached as Exhibit "G"; Mannie Jackson Deposition Transcript, attached as Exhibit "H" at 199). 76. Plaintiff disputes ¶ 9 of Defendants' SOF and affirmatively asserts that Plaintiff's number is retired and Plaintiff has not needed to object to the recycling of his player number because it has not been recycled. (See Affidavit of Meadowlark Lemon dated 11/23/05, attached as Exhibit "I" ¶ 2; Transcript of Deposition of Govoner Vaughn, attached as Exhibit "J" p. 26-27, 38, 101-103). 77. Plaintiff disputes ¶ 10 of Defendants' SOF and affirmatively asserts that Plaintiff is the only Globetrotter player to have worn #36. (See Exhibit "J"). -6Document 283

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78. Plaintiff is without sufficient information to agree with or dispute ¶ 11 of Defendants' SOF. However, Plaintiff affirmatively asserts that he only wore #36 as a Globetrotter player and never wore any other number. (See Exhibit "I" at ¶ 2). 79. Plaintiff disputes ¶ 12 of Defendants' SOF and affirmatively asserts that Plaintiff owns the rights to #36 as that is the only number he wore as Globetrotter player, the number was retired when Plaintiff was inducted into the Basketball Hall of Fame, and the number has acquired secondary meaning since the public associates #36 with Plaintiff. (See Exhibit "I" at ¶ 2, 3). 80. Plaintiff disputes ¶ 13 of Defendants' SOF and affirmatively asserts that a `standard player contract' does not exist. (See Michael Syracuse Deposition Transcript, attached as Exhibit "K" at p.67-69). 81. Plaintiff disputes ¶ 14 of Defendants' SOF because Plaintiff does not know what is "typical" when Defendants state that "Typically Plaintiffs would sign a new contract..." Furthermore, Plaintiff affirmatively asserts the fact that the contracts differed depending on whether they covered the regular season, the summer, or Europe, or whether they were for multi-year terms or contained a renewal option, is further evidence that no `standard player contract' existed. 82. Plaintiff disputes ¶ 15 of Defendants' SOF and affirmatively asserts that his player contract and independent contractor agreement did not contain "a paragraph authorizing the Globetrotters to use Plaintiff's name, photo and likeness for publicity and other purposes in perpetuity." (See Exhibit "B"; Exhibit "C"). 83. Plaintiff is without knowledge regarding ¶ 16 of Defendants' SOF and therefore does not agree with or dispute the allegations therein. Plaintiff has no knowledge of other players' contracts. However, Plaintiff would like to point out that the language in each of the paragraphs that Defendants excerpted from the Plaintiffs' contracts is different and therefore is further evidence -7Document 283

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that there is no `standard player contract.' (See Defendants' SOF ¶ 16-22). 84. Plaintiff is without knowledge regarding ¶ 17 of Defendants' SOF and therefore does not agree with or dispute the allegations therein. Plaintiff has no knowledge of other players' contracts. However, Plaintiff would like to point out that the language in each of the paragraphs that Defendants excerpted from the Plaintiffs' contracts is different and therefore is further evidence that there is no `standard player contract.' (See Defendants' SOF ¶ 16-22). 85. Plaintiff is without knowledge regarding ¶ 19 of Defendants' SOF and therefore does not agree with or dispute the allegations therein. Plaintiff has no knowledge of other players' contracts. However, Plaintiff would like to point out that the language in each of the paragraphs that Defendants excerpted from the Plaintiffs' contracts is different and therefore is further evidence that there is no `standard player contract.' (See Defendants' SOF ¶ 16-22). 86. Plaintiff is without knowledge regarding ¶ 20 of Defendants' SOF and therefore does not agree with or dispute the allegations therein. Plaintiff has no knowledge of other players' contracts. However, Plaintiff would like to point out that the language in each of the paragraphs that Defendants excerpted from the Plaintiffs' contracts is different and therefore is further evidence that there is no `standard player contract.' (See Defendants' SOF ¶ 16-22). 87. Plaintiff is without knowledge regarding ¶ 21 of Defendants' SOF and therefore does not agree with or dispute the allegations therein. Plaintiff has no knowledge of other players' contracts. However, Plaintiff would like to point out that the language in each of the paragraphs that Defendants excerpted from the Plaintiffs' contracts is different and therefore is further evidence that there is no `standard player contract.' (See Defendants' SOF ¶ 16-22). 88. Plaintiff is without knowledge regarding ¶ 22 of Defendants' SOF and therefore does not agree with or dispute the allegations therein. Plaintiff has no knowledge of other players' contracts. -8Document 283

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However, Plaintiff would like to point out that the language in each of the paragraphs that Defendants excerpted from the Plaintiffs' contracts is different and therefore is further evidence that there is no `standard player contract.' (See Defendants' SOF ¶ 16-22). 89. Plaintiff agrees with ¶ 23 of Defendants' SOF insofar as Plaintiff admits he made the statement contained therein at his deposition. However, Plaintiff DISPUTES the first sentence of ¶ 23, which states "compensation paid to players in the standard contracts was full compensation for playing as well as using players' name in any kind of merchandising or anything else regarding the Harlem Globetrotters." Plaintiff affirmatively asserts that he did receive additional

compensation for doing commercials. (See Meadowlark Lemon Deposition Transcript, attached as Exhibit "L" at p. 125-131). 90. Plaintiff disputes the allegation in ¶ 25 of Defendants' SOF that the Globetrotters sold trading cards with Plaintiffs' name and likeness. Nowhere on pages 126-127 of Plaintiff's deposition, which is cited by Defendants as evidence of the trading cards, does Plaintiff state that the Globetrotters sold trading cards with his name and likeness. However, Plaintiff does agree with the remainder of ¶ 25. 91. Plaintiff disputes that he stated on page 127 of his deposition that "the programs are re-run or sold at retail today" as Defendants assert in the last sentence of ¶ 30 of Defendants' SOF. Therefore, Plaintiff is without knowledge whether the programs are re-run or sold at retail today and does not agree with or dispute that allegation. remainder of ¶ 30. 92. Defendants have not previously disclosed any evidence regarding ¶ 32 of Defendants' SOF and therefore, Plaintiff is without knowledge regarding the matters therein. As a result, Plaintiff does not agree with or dispute the statements in ¶ 32 of Defendants' SOF. -9Document 283 Additionally, Plaintiff agrees with the

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93. Defendants have not previously disclosed any evidence regarding ¶ 37 of Defendants' SOF and therefore Plaintiff is without knowledge regarding the allegations contained therein. As a result, Plaintiff does not agree with or dispute the allegations in ¶ 37 of Defendants' SOF. 94. ¶ 40 of Defendants' SOF does not concern Plaintiff and Plaintiff does not have any knowledge regarding Plaintiff Neal's activities. Therefore, Plaintiff does not agree with or dispute the allegations in ¶ 40 of Defendants' SOF. 95. ¶ 42 of Defendants' SOF does not concern Plaintiff and Plaintiff does not have any knowledge regarding Plaintiff Hall's activities. Therefore, Plaintiff does not agree with or dispute the allegations in ¶ 40 of Defendants' SOF. 96. ¶ 44-48 of Defendants' SOF do not concern Plaintiff and Plaintiff does not have any knowledge regarding Plaintiffs Neal, Sanders, Haynes, Rivers, and Thorton's activities. Therefore, Plaintiff does not agree with or dispute the allegations in ¶ 44-48 of Defendants' SOF. 97. Plaintiff disputes that portion of ¶ 49 of Defendants' SOF which asserts that Plaintiff "has not asked the Globetrotters to stop using his name and likeness since he left the team." Plaintiff affirmatively asserts he is currently asking the Globetrotters to stop using his name and likeness through this litigation. Additionally, Plaintiff asserts that Defendants have not entered into a licensing agreement which licensed the use of Plaintiff's name and likeness since he quit playing for the Globetrotters and therefore had no reason to ask them to stop prior to bringing this lawsuit. (See Affidavit of Ed Mutum, attached as Exhibit "M" at ¶ 5; Exhibit "H" at p. 249-250). Plaintiff agrees with the remainder of ¶ 49. 98. ¶ 50-52 of Defendants' SOF do not concern Plaintiff and Plaintiff does not have any knowledge regarding Plaintiffs Haynes, Thorton, Rivers, Hall, Sanders, and Neal's activities. Therefore, Plaintiff does not agree with or dispute the allegations in ¶ 50-52 of Defendants' SOF. -10Document 283 Filed 11/30/2005

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99. ¶ 54-55 of Defendants' SOF do not concern Plaintiff and Plaintiff does not have any knowledge regarding Plaintiffs Neal and Haynes' activities. Therefore, Plaintiff does not agree with or dispute the allegations in ¶ 54-55 of Defendants' SOF. 100. Plaintiff is without knowledge regarding whether Clyde Austin, Lou Dunbar, and Herbert

Ausbie "participated, cashed their checks, and have no objection to the promotion in anyway" and therefore Plaintiff does not agree with or dispute that portion of ¶ 57 of Defendants' SOF. Plaintiff does agree that those persons are not parties in this lawsuit. 101. Plaintiff is without knowledge regarding what the `hundreds of Globetrotters alumni'

have done and therefore, Plaintiff does not agree with or dispute ¶ 58 of Defendants' SOF. 102. Plaintiff disputes ¶ 59 of Defendants' SOF and affirmatively asserts that it is impossible

that Defendants' relied on Plaintiff's contract for licensing and promotion activities because Plaintiff's contract was not readily available to Defendants as it was in a large storage warehouse when the lawsuit first began. Therefore, at the outset of litigation, Defendants were unable to provide Plaintiff with a copy of his old player contract. Furthermore, none of Plaintiffs'

contracts were looked at prior to Defendants entering into the sublicense agreement with GTFM, and only a blank contract was attached to the HGI/GTFM sublicensing agreement. (See Bruce Weisfeld Deposition Transcript, attached as Exhibit "N" at p. 65-68; Larry Blenden Deposition Transcript, attached as Exhibit "O" at p. 24-28, 34-36; Exhibit "H" at p. 262). Plaintiff also affirmatively asserts that Defendants have not provided any evidence during discovery, and do not cite to any supporting documents in their Statement of Facts, regarding an alleged sublicensing agreement between Defendants and the manufacturer of the team's program. Therefore, Plaintiff also disputes that portion of ¶ 59. Plaintiff does agree that if the

Globetrotters do have a sublicensing agreement with the manufacturer of the team's program, -11Document 283 Filed 11/30/2005

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Defendants would have to change that agreement if the team did not have the right to license Plaintiff's name. 103. Plaintiff disputes ¶ 64 of Defendants' SOF affirmatively asserts that Mr. Jackson

promotes individual players over `the brand' as evidenced by the fact that Defendants use specific player names in promoting the programs, have a "wall of fame," and have named "legendary players." (See Exhibit "J" at p. 26-27, 38, 101-103). 104. ¶ 71 of Defendants' SOF is pure speculation and therefore Plaintiff does not possess

knowledge regarding the statements contained therein. 105. Plaintiff disputes ¶ 75 of Defendants' SOF and affirmatively asserts that Mannie Jackson

profited individually from the HGI/GTFM license agreement because he was the sole shareholder, and after the licensing agreement, Mannie Jackson sold 80% of his shares for $70 million. (See Article titled "New Partnership to Increase Globetrotters Brand Worldwide," attached as Exhibit "P"). 106. Plaintiff disputes ¶ 76 of Defendants' SOF and asserts that it is not common knowledge

in the merchandising industry that most merchandise is manufactured overseas. Defendants have not cited anything to support that proposition. Furthermore, Plaintiff affirmatively asserts that it does not matter what Mannie Jackson subjectively believes is highly offensive as the correct standard is it only matters what the `reasonable person' would find highly offensive. 107. Plaintiff disputes ¶ 79 of Defendants' SOF and affirmatively asserts that a large

percentage of the total Apparel included information related to Plaintiffs. (See Exhibit "A"). 108. Plaintiff disputes ¶ 82 of Defendants' SOF and affirmatively asserts that Plaintiff's name,

as used on infringing hangtags, was used for marketing purposes. (See Exhibit "N" at p. 55-61; Samples of Hangtags, attached as Exhibit "Q"). -12Document 283 Filed 11/30/2005

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109.

Although Plaintiff agrees that Mr. Jackson made the statements in ¶ 84 of Defendants'

SOF, Plaintiff disputes the truthfulness of the statements. Plaintiff affirmatively asserts that Defendants' received a 10% royalty for the first $1 million, and only received an 8% royalty after that. (See HGI/GTFM Sublicensing Agreement). Plaintiff also disputes that 8% `was market' and asserts that Defendants have produced no evidence to Plaintiffs regarding what "market" was. 110. ¶ 87 of Defendants' SOF does not pertain to Plaintiff and he is without knowledge

regarding the actions of Plaintiffs Neal, Rivers, Thorton, and Sanders. Therefore, Plaintiff does not agree with or dispute the allegations in ¶ 87 of Defendants' SOF. 111. Plaintiff disputes ¶ 88 of Defendants' SOF and affirmatively asserts that Plaintiff is the

only person who holds the right to license his name and likeness and therefore, Defendants have an obligation to turn over all profits earned from their illegal use of Plaintiff's name and likeness on all of the apparel, including jerseys. (See Exhibit "B"; Exhibit "C"; Exhibit "I" at ¶ 8-9). 112. Plaintiff disputes the statement in ¶ 91 of Defendants' SOF which states that GTFM is no Plaintiff affirmatively asserts that retailers are still selling the

longer selling any Apparel.

Platinum FUBU Harlem Globetrotters clothing line bearing Plaintiff's name. (See Exhibit "O" at p. 46). Plaintiff agrees with the remainder of ¶ 91. 113. Plaintiff disputes ¶ 95 of Defendants' SOF and affirmatively asserts that Plaintiff has

presented ample evidence that the Apparel is likely to cause consumer confusion. (See Exhibit H at p. 15, 138, 187; Exhibit "O" at p. 121; Exhibit "I" at ¶ 2, 6). 114. Plaintiff disputes ¶ 97 of GTFM's SOF. Plaintiff affirmatively asserts that the actual

statement of Ms. Abalos was as follows:

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Q:

Is it fair to say that a license for the plaintiffs' name, likenesses, and numbers alone without the right to use Harlem Globetrotters with it would be worth a lot less than 8 to 10 percent?

A:

Perhaps.

(See Abalos Deposition Transcript, attached as Exhibit "R" at p. 32). Plaintiff further states that he was not required to determine what a reasonable royalty rate was for the use of Plaintiff's name, number and likeness as Plaintiff used a different methodology in computing the amount of damages. (See Exhibit "R" at p. 32; Exhibit "A"). Furthermore, Defendants' expert also did not render an opinion on what a reasonable royalty rate would have been for the use of Plaintiff's name and likeness on the Apparel. (See Exhibit "FF"). 115. Plaintiff disputes ¶ 103 of Defendants' SOF and affirmatively asserts that Plaintiff has

suffered economic damages as a result of the HGI/GTFM licensing agreement. (See Exhibit "A"). Furthermore Plaintiff affirmatively asserts that Plaintiff seeks more than just Defendants' profits. (See Plaintiff's Second Amended Complaint filed on October 1, 2004). 116. ¶ 109-111 of Defendants' SOF do not concern Plaintiff and Plaintiff does not have any

knowledge regarding Plaintiff Haynes' activities. Therefore, Plaintiff does not agree with or dispute the allegations in ¶ 109-111 of Defendants' SOF. 117. ¶ 112-113 of Defendants' SOF do not concern Plaintiff and Plaintiff does not have any

knowledge regarding Plaintiff Halls' activities. Therefore, Plaintiff does not agree with or dispute the allegations in ¶ 112-113 of Defendants' SOF. 118. Plaintiff disputes ¶ 115 of Defendants' SOF and affirmatively asserts that Plaintiff does

currently license his name and likeness and has recently entered into licensing agreements. (See Exhibit "I" at ¶ 12). Plaintiff agrees with the remainder of ¶ 115. Case 2:04-cv-00299-DGC -14Document 283 Filed 11/30/2005 Page 14 of 28

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119.

Plaintiff disputes the statement in ¶ 121 of Defendants' SOF that states Mannie Jackson

and Meadowlark Lemon did not reach an agreement because Mr. Lemon's demands did not fit the company's best interests and he requested too much money from the Globetrotters. Plaintiff affirmatively alleges that Mannie Jackson did not want to pay Mr. Lemon, as evidenced by his failure to pay the Plaintiffs adequate royalties. Plaintiff agrees with the remainder of ¶ 121. 120. Plaintiff disputes the statement in ¶ 124 of Defendants' SOF that states Meadowlark

Lemon's team uniforms were similar to the Globetrotters' uniforms. Plaintiff agrees with the remainder of ¶ 124. 121. ¶ 129-133 of Defendants' SOF do not concern Plaintiff and Plaintiff does not have any

knowledge regarding Plaintiff Neal's activities. Therefore, Plaintiff does not agree with or dispute the allegations in ¶ 129-133 of Defendants' SOF. 122. ¶ 134-136 of Defendants' SOF do not concern Plaintiff and Plaintiff does not have any

knowledge regarding Plaintiff Thorton's activities. Therefore, Plaintiff does not agree with or dispute the allegations in ¶ 134-136 of Defendants' SOF. 123. ¶ 137-142 of Defendants' SOF do not concern Plaintiff and Plaintiff does not have any

knowledge regarding Plaintiff Rivers' activities. Therefore, Plaintiff does not agree with or dispute the allegations in ¶ 137-142 of Defendants' SOF. 124. ¶ 143-144 of Defendants' SOF do not concern Plaintiff and Plaintiff does not have any

knowledge regarding Plaintiff Sanders' activities. Therefore, Plaintiff does not agree with or dispute the allegations in ¶ 143-144 of Defendants' SOF. 125. Plaintiff disputes ¶ 147 of Defendants' SOF and affirmatively alleges that he has recently

licensed his name and likeness and is currently involved in licensing agreements. (See Exhibit L at 9, 23; Exhibit "I" at ¶ 12). -15Document 283 Filed 11/30/2005

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126.

Plaintiff disputes ¶ 148 of Defendants' SOF and affirmatively alleges that he has

produced ample evidence that his `mark' is recognized among the segment of society that purchased the Apparel, especially since it was basketball sports apparel and Plaintiff has been inducted into the Basketball Hall of Fame. (See Exhibit "H" at p. 15, 138, 187; Exhibit "O" at p. 121; Exhibit "I" at ¶ 2, 6). 127. Plaintiff disputes ¶ 149 of Defendants' SOF and affirmatively alleges that he has

produced ample evidence showing that the Apparel with his former player number has caused confusion and led consumers to believe Plaintiff approved the Apparel. (See Exhibit "H" at p. 15, 138, 187; Exhibit "O" at p. 121; Exhibit "I" at ¶ 2, 6). 128. Plaintiff disputes ¶ 150 of Defendants' SOF and affirmatively alleges that he has

produced evidence showing consumers mistakenly believed he endorsed the Apparel. (See Exhibit "H" at p. 15, 138, 187; Exhibit "O" at p. 121; Exhibit "I" at ¶ 2, 6). 129. Plaintiff disputes ¶ 151of Defendants' SOF and affirmatively alleges that he has produced

evidence showing that consumers were likely confused as to whether Plaintiff endorsed the Apparel. (See Exhibit "H" at p. 15, 138, 187; Exhibit "O" at p. 121; Exhibit "I" at ¶ 2, 6). 130. Plaintiff disputes ¶ 152 of Defendants' SOF and affirmatively alleges that he has

produced evidence indicating that his name was used for advertising the Apparel, and that the Apparel containing his information contributed to sales. (See Exhibit "N" at 55-61; Exhibit "Q"; Exhibit "H" at p. 15, 138, 187; Exhibit "O" at p. 121; Exhibit "I" at ¶ 2, 6). 131. Plaintiff disputes ¶ 153 of Defendants' SOF and affirmatively alleges that he has

produced evidence showing that Defendants intended to profit by confusing consumers and using Plaintiff's name specifically for marketing purposes. (See Exhibit "N" at 55-61; Exhibit "Q").

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132.

Plaintiff disputes ¶ 154 of Defendants' SOF and affirmatively asserts that Plaintiff has

produced evidence suggesting that the Defendants willfully and deliberately infringed on Plaintiff's rights. (See Exhibit "I" at ¶ 8-9; Exhibit "N" at p. 65-66; Exhibit "O" at p. 24-28, 3436; Exhibit "H" at p. 262). 133. Plaintiff disputes ¶ 165 of Defendants' SOF and affirmatively alleges that Plaintiff

produced evidence that comments made by Mannie Jackson brought Plaintiff in disrepute, contempt, and ridicule and that Plaintiff's reputation was damages as a result of such comments. (See Article Titled "Globetrotters Call Foul on Meadowlark", attached as Exhibit "S"; Excerpts of Book, attached as Exhibit "T" at 338-339, 343, 347, 351, 354, 356, 362-363). 134. Plaintiff is without sufficient knowledge regarding ¶ 35 of Defendants' SOF as

Defendants have never disclosed any evidence regarding a purported licensing agreement with A&E Television. Furthermore, Plaintiff never saw the purported program and is without

knowledge whether his name and likeness were included in the broadcast. Therefore, Plaintiff does not agree with or dispute the allegations in ¶ 35. 135. Plaintiff is without sufficient knowledge regarding ¶ 36 of Defendants' SOF as

Defendants have never disclosed any evidence regarding a purported 2005 PBS broadcast. Furthermore, Plaintiff never saw the purported program and is without knowledge whether his name and likeness were included in the program. Therefore, Plaintiff does not agree with or dispute the allegations in ¶ 36. ADDITIONAL FACTS: 136. Plaintiff has submitted evidence of his reputation and notoriety. (See Exhibit "H" at p.

15, 138, 187; Exhibit "O" at p. 121). 137. Plaintiff has submitted evidence on whether purchasers of the FUBU/HGI Apparel were -17Document 283 Filed 11/30/2005

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likely to be confused as to the source or sponsorship of the merchandise. (See Exhibit "H" at p. 15, 138, 187; Exhibit "O" at p. 121). Plaintiff further asserts that he has been inducted into the Basketball Hall of Fame. (See Exhibit "I" at ¶ 2, 6). 138. Plaintiff has established that the Alleged Trademarks are protectible under the Lanham

Act by submitting evidence that consumers likely bought GTFM/HGI Apparel because it contained his name and likeness. (See Exhibit "I" at ¶ 2, 3, 6; Exhibit "H" at p. 15, 138, 187; Exhibit "O" at p. 121). 139. While playing for the Harlem Globetrotters, Plaintiff only wore # 36 on his jersey. (See

Exhibit "I" at ¶ 2). 140. 141. People associate # 36 with Plaintiff. (See Exhibit "I" at ¶ 3). The clothing bearing Plaintiff's name, likeness, and player number sold very well, and

was the highest selling of all players. (See Exhibit "H" at p. 138). 142. Larry Blenden stated that some of the "big" names from the past Harlem Globetrotters

players would be Meadowlark Lemon, Curly Neal, Geese Ausby, and Marcus Haynes. (See Exhibit "O" at p. 121). 143. When Mr. Jackson purchased the Globetrotters, he considered Meadowlark Lemon,

Marques Haynes, and Curly Neal to be legends of the Harlem Globetrotters. (See Exhibit "H" at p. 15). 144. The best-known Globetrotters ever are Meadowlark Lemon and Marques Haynes. (See

Exhibit "H" at p. 187). 145. Meadowlark Lemon is the single most recognized Harlem Globetrotter. (See Exhibit "H"

at p. 255-256).

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146.

Plaintiff has submitted evidence that (i) his names, number, image and likeness has

achieved secondary meaning or (ii) acts as a source identifier. (See Exhibit "H" at p. 15, 138, 187; Exhibit "O" at p. 121). Plaintiff has submitted evidence of his celebrity status and

notoriety, which is proof that his name, number and likeness have achieved secondary meaning. (Id.). 147. Plaintiff currently licenses his name, jersey number, likeness and/or image. (See Exhibit

"I" at ¶ 12). 148. Plaintiff is an ordained minister and runs the Meadowlark Lemon Ministry. (See Exhibit

"L" at p. 10-13). 149. "J"). 150. At the FUBU wholesale level, GTFM's estimate of the total wholesale of all HGI Plaintiff is the only Globetrotter player to have worn number thirty-six. (See Exhibit

merchandise and apparel was approximately twenty million dollars. (See Exhibit "N" at p. 8687). 151. The clothing line had a projected sales volume of twenty million dollars. (See Daymond

Aurum Deposition Transcript, attached as Exhibit "U" at p. 40-41). 152. The Harlem Globetrotters royalty analysis from GTFM for January 2002 through

November 2003 shows net sales on men's and boy's clothing line alone for the first two years of $22.6 million. (See Exhibit "U" at p. 45.). 153. The FUBU Globetrotters jerseys and warm up suits became an immediate hit and sold

over $60 million retail in the first two years. (See Exhibit "H" at p. 121-122).

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154.

The FUBU Globetrotters clothing line was available worldwide in over 5,000 retail stores

in thirty countries with retail sales of over $35 million the first ten months of the three-year deal. (See Exhibit "H" at p. 122.). 155. Mannie Jackson stated that the HGI/GTFM licensing agreement was a "100 million

dollar" deal. (See ESPN article, attached as Exhibit "V"). 156. Plaintiff's continued promotion of himself in the basketball/sports community by doing

speaking engagements and by having his own basketball team, the Meadowlark Lemon Harlem Allstars, Plaintiff has made it clear that he is no longer associated with the Globetrotters organization. (See Exhibit "L" at p. 9-13, 23). 157. Plaintiff became aware that a FUBU clothing line of sports apparel was being

manufactured and sold featuring his name and player number when he witnessed many fans wearing the clothing at the ceremony in which Plaintiff was being inducted into the Basketball Hall of Fame and his number (36) was retired. (See Exhibit "I" at ¶ 6). 158. Plaintiff first became aware of HGI and GTFM's actions in producing a clothing line

displaying his name and likeness in or about the end of 2003. (See Exhibit "I" at ¶ 11; Plaintiff's Second Amended Complaint filed on October 1, 2004 ¶ 24). 159. On December 23, 2003, Plaintiff sent a letter to HGI and Mannie Jackson, requesting any

and all documentation which they are relying on that gives Defendants or any other entity authorization to use Plaintiff's name, image, likeness, number, notoriety, and goodwill. (See Plaintiff's Second Amended Complaint filed on October 1, 2004 ¶ 24; Letter to Mannie Jackson, CEO of HGI, from Rosenquist & Associates dated December 23, 2003, attached as Exhibit "W"). 160. Defendants did not respond to the inquiry by the stated deadline of January 15, 2004.

(See Exhibit "W"; See Plaintiff's Second Amended Complaint filed on October 1, 2004 ¶ 24). -20Document 283 Filed 11/30/2005

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161.

At no time from October 15, 1975 through October 14, 1980, was any clothing,

especially sports ware, being sold with the individual player names on it. (See Exhibit "M" at ¶ 5). 162. Aside from the FUBU clothing line HGI has not been involved in utilizing the plaintiffs'

names and likenesses. (See Exhibit "H" at p. 249-250). 163. Not even the clothing sold in the arenas at Harlem Globetrotters events contains

Plaintiff's name and likeness. (See Exhibit "H" at p. 259). 164. Because of Defendants' refusal to reliably quantify sales, Plaintiffs' expert was unable to

completely calculate compensation based solely on individual Plaintiffs. (See Exhibit "R" at p. 40, 102-105, 111-114, 115, 119-121, 130, 133-135, 137-141, 144, 148-149, 155-156, 184-187, 207-208; See also ¶ 147 - 152, supra). 165. Plaintiff is no longer involved with the Harlem Globetrotter organization. (See Plaintiff's

Second Amended Complaint filed on October 1, 2004 ¶ 13; Answer to Plaintiff's Second Amended Complaint, Affirmative Defenses and Counterclaim filed on October 25, 2004 ¶ 13; Exhibit "I" at ¶ 7.) 166. 12-13). 167. HGI entered into an agreement with GTFM and others to license, develop, create, The contract between GTFM and HGI was singed in June 2002. (See Exhibit "O" at p.

produce, manufacture, market, promote, sell, and distribute apparel products, goods, and other merchandise, and under the agreement HGI authorized the use of the names and likenesses of any and all players who have played for the Harlem Globetrotters, or who thereafter play for the Globetrotters during the term of the agreement, other than Wilt Chamberlain and Magic Johnson. (See GTFM's Answer to Plaintiff's Second Amended Complaint ¶ 15; HGI's Answer to -21Document 283 Filed 11/30/2005

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Plaintiff's Second Amended Complaint, Affirmative Defenses and Counterclaim filed October 25, 2004 ¶ 15 & ¶ 27). 168. Defendants did not have the right to use Plaintiff's name and likeness in the HGI/GTFM

clothing line under Plaintiff's old contract. (See Exhibit "B"; Exhibit "C"; Exhibit "I" at ¶ 8-9). 169. During the contract negotiations with GTFM, Mannie Jackson, on behalf of HGI,

represented that HGI had the right to use player's names and likenesses. (See Exhibit "N" at p. 65-66). Specifically, Mannie Jackson stated that all past Harlem Globetrotter players signed a contract with the original Harlem Globetrotter's owner, in which the players signed away their rights in perpetuity for the use of their names and likenesses. Id. 170. Plaintiff received a check from the Harlem Globetrotters International Foundation, which

was only for five thousand dollars ($5,000) and Plaintiff did not cash the check. (See Exhibit "I" at ¶ 1). The check did not represent all profits received from styles that included Plaintiff's name and/or likeness. (See Exhibit "A"). 171. Plaintiff never signed a contract with the original Harlem Globetrotter's owner or HGI, in

which he signed away his rights in perpetuity for the use of his name and likeness. (See Exhibit "I" at ¶ 8). 172. Plaintiff has no agreements/contracts with HGI or GTFM allowing license or use of his

identity, attributes of identity, name, images, or likenesses. (See Exhibit "B"; Exhibit "C"; Exhibit "I" at ¶ 9; Plaintiff's Second Amended Complaint filed on October 1, 2004 ¶ 14.) 173. In the book "Spinning the Globe: The Rise, Fall, and Return to Greatness of the Harlem

Globetrotters," which was authored by Ben Green, Mannie Jackson made defamatory statements about Plaintiff, and told lies about the Plaintiffs and other Globetrotter players, and made false implications about Plaintiff by only telling half-truths. (See Exhibit "T"). -22Document 283 Filed 11/30/2005

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174.

In interviews for the book "Spinning the Globe: The Rise, Fall, and Return to Greatness

of the Harlem Globetrotters," which was authored by Ben Green, Mannie Jackson made defamatory statements about Plaintiff. (See Affidavit of Meadowlark Lemon dated 10/28/05, attached as Exhibit "X" at ¶ 13.) 175. 176. The book "Spinning the Globe" is sold on the Harlem Globetrotters website. Mannie Jackson has received a monetary benefit from the book "Spinning the Globe" and

the defamatory statements made against Plaintiff. 177. In a statement that was published in the Arizona Republic on January 17, 2004, Mannie

Jackson made a defamatory statement about Plaintiff. (Exhibit "S"). Specifically, while talking about Meadowlark forming his own team instead of re-joining the Harlem Globetrotter's, Mannie Jackson stated "he wanted to be the show. We have a strong brand policy instead of a star system, and he wanted more money than I could afford." Id. 178. 179. 180. Mannie Jackson is the owner and CEO of HGI. (See Exhibit "H" at p. 9). Arizona is a community property state. Mannie Jackson's statements and defamatory conduct were made on behalf of the

community and benefited the community. 181. Mannie Jackson was 100% owner of HGI prior to the recent sale and to Plaintiff's

knowledge is still currently the owner of the Foundation. (See Corporate Filing, attached as Exhibit "Y"). 182. Mannie Jackson participated in the negotiation of the agreement with GTFM. (See HGI

Memorandum, Doc. 216, Jackson Affidavit at ¶ 9). 183. GTFM relied on Mannie Jackson's personal representations when deciding to enter the

licensing agreement and to not perform any due diligence as to HGI's authority to license -23Document 283 Filed 11/30/2005

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Plaintiff's name and likeness. (See Exhibit "N" at p. 65-68; Exhibit "O" at p. 24-28, 34-36; Exhibit "H" at p. 262). 184. Mannie Jackson negotiated and signed the HGI/GTFM licensing agreement. (See HGI

Memorandum, Doc. 216, Jackson Affidavit at ¶ 9). 185. Mannie Jackson sent letters to Plaintiffs regarding the diversion of money to the

Foundation. (See GTFM Sales Report and Cover letter, attached as Exhibit "Z"). 186. Mannie Jackson's daughter is the only employee of the Foundation and she is paid by the

Foundation. (See Exhibit "H" at p. 200-201). 187. Mannie Jackson himself made the decision to place merchandise revenue in the

Foundation. (See Jackson Letter to Alumni dated 9/4/2003, attached Exhibit "AA"). 188. Mannie Jackson made a $70 million profit from the sale of the Globetrotters and he

caused HGI to become insolvent by withdrawing over $9 million. (See Exhibit "P"; Exhibit "R" at p. 226-227). 189. Mannie Jackson, and his long time employees, Lenihan and Syracuse, control the

Foundation. (See Foundation Filing, Exhibit "BB"). 190. Alumni director, Governor Vaughn, and Coach Lou Dunbar do not know what the

Foundation does or who it has helped. (See Exhibit "J" at p. 6-7; Dunbar Deposition Transcript, attached as Exhibit "CC" at p. 82-83). 191. Ms. Jackson testified that she does various charity work but when asked if she did any for

the Foundation she answered "absolutely not," and, incredibly, she doesn't even know who is on the board. (See Catherine Jackson Deposition Transcript, attached as Exhibit "DD" at p. 15).

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192.

Ms. Jackson's charity, Arizona Foundation for Women, was paid $4,500.00 from the

Foundation in 2002 and 2003 according to Foundation cash disbursement report filed with the State of Arizona. (See Exhibit "DD" at 37; Foundation Report, attached as Exhibit "G"). 193. The Foundation clearly was the recipient of revenues directly attributable to the sale of

HGI/GTFM clothes bearing Plaintiff's name and likeness. (See Exhibit "Z"; Exhibit "K" at 42, 86; Exhibit "H" at 147-148). 194. None of the Plaintiffs, including Mr. Lemon, has any idea what the Foundation does with

the money it makes off of their names and likenesses. (See Exhibit "D at 50; Exhibit "E" at 128; Exhibit "F" at 97-98, 107). 195. Public records reveal a list of numerous recipients of the Foundation's largesse, which

was earned from Plaintiffs' names, yet not one payment was made to any needy former player. (See Exhibit "G"). 196. Mannie Jackson could not name a single former Globetrotter player helped by the

Foundation (See Exhibit "H" at 199). 197. The Foundation has controlled millions of dollars at the discretion and control of Mannie

Jackson. (See Foundation Receipt Report, attached as Exhibit "EE"). 198. Catherine Jackson has been married to Mannie Jackson for twenty-seven years and they

were married at the time the team was purchased. (See Exhibit "DD" at p. 9, 19-20). 199. Mannie and Catherine Jackson have filed joint tax returns since they were married. (See

Exhibit "DD" at p. 33). 200. While Catherine Jackson testified she didn't know if marital funds were used to buy the

Globetrotters team in 1993, she stated in her deposition "WE didn't even own the company back then." (See Exhibit "DD" at p. 30, 35-36). -25Document 283 Filed 11/30/2005

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201.

Plaintiff's prior contracts with the Globetrotters did not give the Defendants license to

use Plaintiff's name and likeness as Defendants did in the HGI/GTFM clothing line. (See Exhibit "B"; Exhibit "C"). 202. Plaintiff's expert report sets forth evidence of Plaintiff's actual damages and Plaintiff's

entitlement to Defendants' profits received under the HGI/GTFM licensing agreement. (See Plaintiff's Expert Report, attached as Exhibit "A").

DATED this 30th

day of November 2005.

By:

/s/ Anders Rosenquist ROSENQUIST & ASSOCIATES Anders Rosenquist, Jr. Florence M. Bruemmer Attorneys for Plaintiff

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CERTIFICATE OF SERVICE Florence M. Bruemmer declares as follows: 1. I am and was at all times mentioned herein a citizen of the United States and a resident of Maricopa County, Arizona over the age of 18 years of age and not a party to the action or proceeding. I am an attorney with Rosenquist & Associates. 2. I hereby certify that on November 30th , 2005, a true and correct copy of the foregoing STATEMENT OF CONTRAVERTING FACTS IN SUPPORT OF PLAINTIFF MEADOWLARK LEMON'S RESPONSE TO DEFENDANTS HARLEM GLOBETROTTERS INTERNATIONAL, INC., HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, AND MANNIE L. & CATHERINE JACKSON'S MOTION FOR SUMMARY JUDGMENT was sent by postage-prepaid first-class mail, addressed to: Joel L. Herz, Esq. Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tuscon, Arizona 85718 Telephone: (520) 529-8080 Attorneys for Defendants FUBU the Collection, LLC GTFM of Orlando, LLC d/b/a FUBU Company Store Safia A. Anand, Esq. DREIR, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendants FUBU the Collection, LLC, GTFM of Orlando, LLC and GTFM, LLC Clay Townsend, Esq. Morgan, Colling & Gilbert, PA 20 N. Orange Avenue 16th Floor Orlando, FL 32802 Attorneys for Plaintiffs Neal, Rivers, Thorton, Hall, Haynes and Sanders Robert W. Goldwater, III, Esq. The Goldwater Law Firm, P.C. 15333 North Pima Road, #225 Scottsdale, Arizona 85260 -27Document 283 Filed 11/30/2005

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Attorneys for Plaintiffs Neal, Rivers, Thorton, Hall, Haynes and Sanders Ray K. Harris Fennemore Craig 2003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson Edward R. Garvey Christa Westerberg Garvey McNeil & McGillivray 634 West Mail Street Suite 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson by placing same in a properly sealed, postage prepaid envelope and depositing same in a United States Postal Service mail box. 3. I declare under the penalty of perjury under the laws of the United States that the foregoing is a true and correct. Executed this 30th day of November 2005, at Phoenix, Arizona.

/s/ Florence M. Bruemmer Florence M. Bruemmer

-28Document 283 Filed 11/30/2005

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